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Jess & Jess (No 2)

Jess & Jess (No 2)

Case [2021] FedCFamC1A 49 5 November 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jess & Jess (No 2) [2021] FedCFamC1A 49

Appeal from:
Jess & Jess and Ors [2018] FamCA 1179

Jess (Declaration and Recusal) [2019] FamCA 841

Appeal number(s): SOA 74 of 2019

File number(s): MLF 3444 of 2006

Judgment of: ALSTERGREN CJ & STRICKLAND J

Date of judgment: 5 November 2021

Catchwords:
FAMILY LAW – APPEAL – COSTS – Applicants/appellants wholly unsuccessful in the appeal against a declaratory order but successful in the appeal against a refusal to recuse – Recusal appeal succeeded on a question of law – Applicants’/appellants’ applications for costs dismissed – Overall costs apportioned at 90 per cent to the appeal against the declaratory order – No exceptional circumstances justifying a departure from the ordinary rule of calculating costs on a party/party basis – Costs sought by the first respondent reasonable and fixed in the amount sought – Costs ordered in the sum sought by the first respondent against the applicants/appellants in relation to the declaratory appeal – Third respondents’ participation in the declaratory appeal was largely unnecessary – Third respondents’ application for costs dismissed – Cost certificates ordered for each party in relation to the recusal appeal.

Legislation:
Family Law Act 1975 (Cth) ss 28(4)(a), 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 17(2)(b)

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Family Law Rules 2004 (Cth) rr 19.18, 19.34

Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160; [1995] FCA 350

Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Jess & Jess [2021] FamCAFC 159

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321

NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] 109 FCR 77; [2001] FCA 480

Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Number of paragraphs: 50

Date of last submission/s: 23 September 2021

Date of hearing: In Chambers on the Papers

Place: Melbourne

Counsel for the Applicants/Appellants: Mr Waller QC with Mr Mereine

Solicitor for the Applicants/Appellants: HWL Ebsworth

Counsel for the First Respondent: Mr Dickson QC with Ms Johnston

Solicitor for the First Respondent: Kenna Teasdale

Solicitor for the Second Respondent: Not participating

Counsel for the Third Respondents: Mr Austin QC with Ms Papaleo

Solicitor for the Third Respondents: Lander & Rogers
ORDERS

SOA 74 of 2019
MLF 3444 of 2006

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR JESS JNR & ORS

Applicants/Appellants

AND:
MS JESS
First Respondent

MR J IN HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE MR JESS SNR

Second Respondent

MR K & MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR (DECEASED)

Third Respondents

ORDER…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jess & Jess (No 2)

Details

AGLC: Jess & Jess (No 2) [2021] FedCFamC1A 49
Case: [2021] FedCFamC1A 49
Decision Date

CaseChat Overview and Summary

In the case of Jess & Jess (No 2), the parties involved were Jess and Jess, along with other respondents, who were engaged in a legal dispute that was brought before the court. The nature of the dispute centred around the applicants' appeal against a declaratory order made by a primary judge, specifically an order dismissing their application for the primary judge to recuse herself. The case was heard and decided by the court, which had to address the applicants' appeal and the associated costs implications.

The legal issues that the court had to decide included whether the applicants were entitled to an order for costs against the respondents and whether the appeal against the declaratory order was successful. The court also had to determine the appropriate amount of costs to be awarded, if any, in relation to the application for leave to appeal and the appeal against the declaratory order. Furthermore, the court had to consider the respective costs incurred by each party in the context of the application for leave to appeal and the appeal against the order dismissing the recusal application.

The court, after thorough consideration, determined that the applicants/appellants were not entitled to an order for costs against the respondents. It was found that the applicants' appeal against the declaratory order was unsuccessful, and therefore, no costs should be awarded in relation to the appeal. The court further concluded that the first respondent was entitled to be awarded costs in relation to the application for leave to appeal and the appeal against the declaratory order, in the sum of $163,242.42. Additionally, the respective applications for costs by the applicants/appellants and the third respondents were dismissed, and each party was to receive a costs certificate for their respective costs incurred in the proceedings.

In summary, the court ordered that the applicants/appellants pay the first respondent's costs in relation to the application for leave to appeal and the appeal against the declaratory order, in the sum of $163,242.42. The applicants' and third respondents' applications for costs were dismissed, and each party received a costs certificate for their respective costs incurred in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALSTERGREN CJ

Thus, there will be an order that the applicants/appellants pay the first respondent’s costs in relation to the application for leave to appeal and the appeal against the declaratory order fixed in the sum of $163,242.42.CONCLUSION As just referred to, there will be an order for costs in favour of the first respondent. There will also be no order for costs in favour of either the applicants/appellants or the third respondents, and their respective applications will be dismissed. Finally, each party will have a costs certificate in relation to their respective costs incurred in the application for leave to appeal and the appeal against the order dismissing the application for the primary judge to recuse herself.

Ratio Decidendi

Legal Principle Established

Established by: ALSTERGREN CJ

Full text does not contain this section.

Citations

AGLC Citation

Jess & Jess (No 2) [2021] FedCFamC1A 49

Most Recent Citation

Kedis & Bainbridge (No 2) [2024] FedCFamC2F 587

Cases citing this decision · 2 of 2 shown

Kedis & Bainbridge (No 2)
[2024] FedCFamC2F 587 Para 17

…d in submissions that the apportionment of costs between issues was not a new concept; upon reading the Full Court’s decision in Jess & Jess (No 2) [2021] FedCFamC1A 49 (Alstergren CJ & Strickland J) at [10], the Court’s discretion as to apportionment was founded not only on a party’s contentions but their own experien…
Jess & Jess (No 6)
[2023] FedCFamC1F 168 Para 16

…state of the late Mr Jess Snr are at risk in this litigation. There was no duplication in effort or costs. They are entitled to their costs. [10] [2021] FedCFamC1A 49. LUMP SUM OR ASSESSMENT…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Beach Petroleum NL v Johnson (No 2)
[1995] FCA 350

…Australia (Family Law) Rules 2021 (Cth) r 12.17 Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160; [1995] FCA 350 Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Jess & Jess [2021] FamCAFC 159 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin v Limousi…
Appeal from:; Jess & Jess and Ors [2018] FamCA 1179; Jess (Declaration and Recusal)
[2019] FamCA 841

…N 1) APPELLATE JURISDICTION Jess & Jess (No 2) [2021] FedCFamC1A 49 Appeal from: Jess & Jess and Ors [2018] FamCA 1179 Jess (Declaration and Recusal) [2019] FamCA 841 Appeal number(s): SOA 74 of 2019 File number(s): MLF 3444 of 2006 Judgment of: ALSTERGREN CJ & STRICKLAND J Date of judgment: 5 November 2021 Catchwo…
Jess & Jess
[2021] FamCAFC 159 Para 1

…n 25 August 2021, this Court delivered reasons for judgment and made orders in relation to a Notice of Appeal filed on 13 December 2019 ( Jess & Jess [2021] FamCAFC 159).…
Prantage & Prantage
[2013] FamCAFC 105

…NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] 109 FCR 77; [2001] FCA 480 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Number of paragraphs: 50 Date of last submission/s: 23 September 2021 Date of hearing: In Chambers on the Papers Place: Melbourne Counsel for the Applicants/Appellants: Mr Waller QC…
Limousin v Limousin (Costs)
[2007] FamCA 1178

…2021] FamCAFC 159 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321 NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] 109 FCR 77; [2001] FCA 480 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC…
NMFM Property Pty Ltd v Citibank Ltd (No 2)
[2001] FCA 480

…1178 Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321 NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] 109 FCR 77; [2001] FCA 480 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Number of paragraphs: 50 Date of last submission/s: 23 September 2021 Date of hearing: In Chambers on the Papers Place: Mel…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801

…Johnson (No 2) (1995) 135 ALR 160; [1995] FCA 350 Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Jess & Jess [2021] FamCAFC 159 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Munday v Bowman (1997) FLC 92-78…
Beach Petroleum NL v Johnson
[1993] FCA 392 Para 15

…is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation” ( Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162).…
Act] is well settled by the Full Court decision of Kohan and Kohan
[1992] FAMCA 116

…r v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Jess & Jess [2021] FamCAFC 159 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321 NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] 109 FCR 77; […
Jess & Jess and Ors
[2018] FAMCA 1179

…AL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) APPELLATE JURISDICTION Jess & Jess (No 2) [2021] FedCFamC1A 49 Appeal from: Jess & Jess and Ors [2018] FamCA 1179 Jess (Declaration and Recusal) [2019] FamCA 841 Appeal number(s): SOA 74 of 2019 File number(s): MLF 3444 of 2006 Judgment of: ALSTERGREN CJ & STRICK…
Munday v Bowman
Para 22

…drawn from the oft-quoted decision of Sheppard J in Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225, and are as follows (taken from Munday v Bowman (1997) FLC 92-784 at 84,660): (a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have…

Legislation cited in this decision · 5

Family Law Act 1975 (Cth)
117, 28(4)(a) 3 mentions (from Para 8)
Family Law Rules 2004 (Cth)
19.18, 19.34 3 mentions (from Para 14)
Federal Proceedings (Costs) Act 1981 (Cth)
6, 9 3 mentions (from Para 5)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
17(2)(b) 2 mentions (from Para 8)
Australia (Family Law) Rules 2021 (Cth)
12.17 1 mention

SOA 74 of 2019 MLF 3444 of 2006
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR JESS JNR & ORS Applicants/Appellants
AND:	MS JESS First Respondent MR J IN HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE MR JESS SNR Second Respondent MR K & MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR (DECEASED) Third Respondents

Appeal from:	Jess & Jess and Ors [2018] FamCA 1179 Jess (Declaration and Recusal) [2019] FamCA 841
Appeal number(s):	SOA 74 of 2019
File number(s):	MLF 3444 of 2006
Judgment of:	ALSTERGREN CJ & STRICKLAND J
Date of judgment:	5 November 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – Applicants/appellants wholly unsuccessful in the appeal against a declaratory order but successful in the appeal against a refusal to recuse – Recusal appeal succeeded on a question of law – Applicants’/appellants’ applications for costs dismissed – Overall costs apportioned at 90 per cent to the appeal against the declaratory order – No exceptional circumstances justifying a departure from the ordinary rule of calculating costs on a party/party basis – Costs sought by the first respondent reasonable and fixed in the amount sought – Costs ordered in the sum sought by the first respondent against the applicants/appellants in relation to the declaratory appeal – Third respondents’ participation in the declaratory appeal was largely unnecessary – Third respondents’ application for costs dismissed – Cost certificates ordered for each party in relation to the recusal appeal.
Legislation:	Family Law Act 1975 (Cth) ss 28(4)(a), 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 17(2)(b) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 Family Law Rules 2004 (Cth) rr 19.18, 19.34 Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:	Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160; [1995] FCA 350 Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Jess & Jess [2021] FamCAFC 159 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321 NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] 109 FCR 77; [2001] FCA 480 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105
Number of paragraphs:	50
Date of last submission/s:	23 September 2021
Date of hearing:	In Chambers on the Papers
Place:	Melbourne
Counsel for the Applicants/Appellants:	Mr Waller QC with Mr Mereine
Solicitor for the Applicants/Appellants:	HWL Ebsworth
Counsel for the First Respondent:	Mr Dickson QC with Ms Johnston
Solicitor for the First Respondent:	Kenna Teasdale
Solicitor for the Second Respondent:	Not participating
Counsel for the Third Respondents:	Mr Austin QC with Ms Papaleo
Solicitor for the Third Respondents:	Lander & Rogers